Shippey v. Village of Au Sable
| Decision Date | 21 April 1887 |
| Citation | 32 N.W. 741,65 Mich. 494 |
| Court | Michigan Supreme Court |
| Parties | SHIPPEY, by Next Friend, v. VILLAGE OF AU SABLE. |
Error to circuit court, Iosco county.
Elliott & McLean, for plaintiff.
William H. Simpson, (Hanchett & Stark, of counsel,) for defendant and appellant.
Plaintiff who, at the time she received the injury sued for, was a child of not far from three years old, brought her action against defendant, alleging corporate neglect in maintaining a part of a cross-walk, about seven feet long, at a distance of several inches higher than the remainder of the cross-walk, so that plaintiff unavoidably fell from the part so elevated, and suffered serious injury. The defense rested largely on the claim that there was no corporate liability for having the walk in the way in which it was actually placed. There were also some questions of evidence, and some complaints made concerning the charge. The jury rendered a verdict for $6,500.
The case is a peculiar one in some respects, and there are some matters which it is not easy to understand from the record. Witnesses described the surroundings on assumptions which were probably clearer to those in the court-room than they appear to be in the testimony reported. We have had difficulty in comprehending some leading features of the case, and especially in ascertaining the precise character of the walk in various parts as sidewalk or cross-walk, and this difficulty appears in the charge of the court, where sidewalk and cross-walk appear to be promiscuously referred to, as they were on the trial, in a way which would have been proper if the village had the same responsibility in regard to both. So, in the testimony concerning the location of the accident a map not in the record is referred to, and the witness McDonald puts the accident at the north-west corner of the intersection of River and Stockman streets, yet on the east side of River street, and the declaration described the walk as along the head of Stockman street where it intersects River street. These references seem as they read to be inconsistent, but there seems to have been a knowledge on the trial of the surroundings; and these variances, if they are variances, were probably overlooked in preparing the bill of exceptions. The difficulty is more serious, as it appears on page 49 of the record that plaintiff's counsel on the trial claimed that any passage in the street, whether dirt or artificial, was a cross-walk, and that the descent from the plank to it was a cause of complaint against the village.
Leaving these questions for the present, the circumstances as claimed by the testimony of plaintiff's witnesses were these About dark, near 7 o'clock in the evening on the last day of September, 1881, plaintiff's father and mother were going along the sidewalk, having a baby in a baby wagon with them, and plaintiff was running on 10 or 12 feet ahead alone. At the place in question, Mr. Solomon, who owned the corner property, had laid down a new walk over an old one, making it about four inches higher than the old one. Where this walk ended, it therefore left a step or descent that was much higher than the old walk, and at this point plaintiff fell over and dislocated her hip, involving injury at the joint, and some permanent consequences of a serious nature. From a comparison of testimony it would seem that this new walk terminated at what would usually be the curb of the highway, and beyond it, then or subsequently, a cross-walk extended, with the usual sloping sides, so as to prevent jolting of crossing teams, and this walk across the traveled track of the road was lower than the surface of the new walk which abutted on it, by the thickness of that structure, making a step down of a few inches. The child, running along until it reached this step, fell on it. Apart from this change of level, the new walk, built only for foot-passage, was entirely level, while the walk in the highway slanted down on each side, and thereby narrowed the level space on top to enable wheels to pass over it without jarring. The point in question was on the transition line from the part confined to foot-passengers to the part used by vehicles; and the contention, so far as it related to negligence in maintaining the passage in this condition, turned on the supposed duty of defendant to keep sidewalks and cross-walks on the same level where they join, or throughout. No other defect is alleged, and the accident was due to this, and to nothing else connected with the place and its surroundings, so far as alleged or appearing.
When the testimony was in, several rulings were sought by defendant, which were refused, and several charges were made which were objected to. The court was asked, under various forms, to hold that the condition shown and relied on for recovery was not such a defect or lack of good repair as was contemplated by law. In refusing this, the court made some rulings, to be noticed presently, concerning the duties of villages in constructing, as well as in keeping in order, their ways and walks. The confusion in the record concerning sidewalks and cross-walks makes this particular question, as one of law applicable to the facts, difficult of solution, as the bill of exceptions stands. The walk in question was built by a lot-owner, and not by the city, and seems to have been built by him as a part of his sidewalk. If it is a cross-walk, and not a sidewalk, it is to be regarded, by whomsoever built, as a city work, and the declaration so alleges it; if a sidewalk, and not a cross-walk, then it comes directly within the decision in Williams v. Grand Rapids, 26 N.W. 279, where it was held the municipality must use its own judgment about making cross-walks to connect with sidewalks. The present case was rather tried on the theory that the sidewalk must be lowered than that the cross-walk should be raised at the junction; but the declaration would sustain either view, and this is not very important.
In O'Neil v. Detroit, 50 Mich. 133, 15 N.W. 48, a question arose whether the space of walk between the outer street line and the curb, at street corners, was properly to be regarded as sidewalk or cross-walk. On paved streets the walk down to the curb is usually built in all respects like a sidewalk, and the street from curb to curb has an entirely different style of cross-walk embedded in the pavement, and not rising above it. The necessities of a wagon road require that, whether a street is paved or not, the cross-walk must be quite different in its construction from an ordinary sidewalk. In that case it was made to appear that the city of Detroit, by long usage and by its legislation, had always constructed at its own expense all walks lying between the intersection of the outer...
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